A Court Cannot Condone The Delay In Filing Of The Petition Under Section 34 Of The A&C Act Beyond 120 Days: Gauhati High Court Reiterates

The Gauhati High Court has held that a Court cannot condone the delay in the filing of the petition under Section 34 of the A&C Act beyond 120 days.

The bench of Justice Malasri Nandi held that the Court cannot condone the delay beyond the period of limitation provided under Section 34(3) of the Act i.e. 3 months+ 30 days. It held that Section 5 of the Limitation Act does not apply to petition under Section 34(1) of the A&C Act.

Facts

The parties entered into an agreement in the year 2010 whereby the respondent was to carry out certain construction works for the appellant.

The project work could not be completed on time, accordingly, the respondent request for extension of time which was granted by the appellant and the work stood completed. Post the completion of the work and before the payment against the final bill, the respondent was made to execute a no-claim certificate. However, after some time, the respondent demanded payment of price variation.

Before the arbitrator, the appellant contended that respondent was not entitled to any payment of price variation as the extension of time was granted without any price variation, moreover, it has already signed a no-claim certificate. However, the arbitrator rejected the appellant’s contention and passed an award in favour of the respondent. The award is dated 25.05.2019

The appellant received the copy of the award in 09.06.2019, however, the competent authority gave its permission for filing of the petition only on 19.12.2019 and the petition was filed on 24.01.2020. An application under Section 5 of the Limitation Act was also moved for condonation of delay.

The lower Court dismissed the petition for having been filed beyond the period of limitation provided under Section 34 (3) of the A&C Act. Aggrieved by the decision of the lower Court, the appellant filed the appeal under Section 37(3) of the Act.

Analysis by the Court

The Court held that a Court cannot condone the delay in the filing of the petition under Section 34 of the A&C Act beyond 120 days.

The Court held that the Court exercising powers under Section 34 of the A&C Act cannot condone the delay beyond the period of limitation provided under Section 34(3) of the Act i.e. 3 months+ 30 days. It held that Section 5 of the Limitation Act does not apply to petition under Section 34(1) of the A&C Act.

The Court relied on the words ‘but not thereafter’ used under Section 34(3) of the A&C Act to hold that a challenge petition must ordinarily be filed within 3 months from the date of the award, however, the act allows for a 30 days grace period for filing the petition subject to sufficient cause being shown for the delay in the filing of the petition and it cannot be filed after the expiry of the grace period regardless of there being any sufficient cause that prevented a party from filing the petition with the stipulated time.

The Court affirmed the order of the lower Court that dismissed the petition filed by the appellant on the ground that it was filed beyond the time period given under Section 34(3) of the A&C Act. The Court held that Section 5 of the Limitation Act, which otherwise empowers the Court to condone delay beyond the limitation period on sufficient cause being shown, is not applicable to petition under Section 34 of the A&C Act.

Accordingly, the Court dismissed the petition.

Case Title: Union of India v. Jyoti Forge and Fabricators, Arb.A 6/2022

Citation: 2023 LiveLaw (Gau) 51

Date: 12.04.2023

Counsel for Appellant: Mr. H P Guwala

Counsel for the Respondent: Mr. M Biswas

Click Here To Read/Download Judgment